Libya must have nothing to do with the failed International Criminal Court

On 12 May 2025, although Libya is not a signatory to the International Criminal Court (“ICC” or “the Court”), the Tripoli-based Government of National Unity (GNU), one of the two rival governments in Libya, agreed to an alternative option whereby the ICC would be enabled to exercise jurisdiction “with respect to alleged crimes in its territory from 2011 to the end of 2027”. 

By Dr David Hoile

The rival administration, the Government of National Stability, based in Tobruk in eastern Libya, and led by Prime Minister Osama Hammad, opposed this move arguing that the GNU has no legal basis to have agreed to the move. The reality is that the GNU’s attempt to align with the International Criminal Court is very questionable for several reasons.

Firstly, as stated by Prime Minister Hammad, it is unclear from the start whether the GNU has any constitutional or legal standing to transfer sovereign legal powers to an international organisation. Legal and political observers challenge the GNU’s capacity to sign any international agreements. The fact that the mandate given to the Tripoli regime has long expired together with the erosion of its standing means it is no longer able to make any such commitment. Any such “agreement” is not one based on a respect for law, international or otherwise, but is instead a political manoeuvre to appear to be in power and to please the European Union.

Secondly, the GNU decision ignores the fact that “international law” – especially as invoked by the ICC – is a myth, as clearly articulated by the noted British philosopher Professor Perry Anderson: “On any realistic assessment, international law is neither truthfully international nor genuinely law”. The ICC is neither international nor a real court.

Thirdly, it is obvious to many observers that the overwhelmingly European-funded-and- directed ICC is an instrument of European foreign policy. The ICC is openly seen and described as the “EU Court”. Libya’s near neighbours Burkina Faso, Mali, and Niger have quit the ICC because it was an “instrument of neo-colonialist repression” which has failed to prosecute “proven war crimes” and “crimes of aggression.” Burundi, which has also withdrawn from the Court, accused the body of being “a political instrument and weapon used by the West to enslave other States.”

A past head of the African Union Commission accused the Court of “racist hypocrisy” and “double standards”, and the AU has previously called for its member states to leave the Court for those reasons. The Rwandan president Paul Kagame stated that the ICC reflected “colonialism, slavery and imperialism”.

Ugandan President Yoweri Museveni has criticised the West for manipulating the Court: “They have used it as a tool to target Africa.” An Ethiopian prime minister accused the ICC of “hunting Africans” because of their race. Other African politicians have simply labelled the ICC the “International Caucasian Court”. The GNU have sought the jurisdiction of a racist Court long manipulated for political reasons by its European funders, one of whom is Libya’s former colonial master, Italy. Plus ça change.

Fourthly, the GNU’s flawed decision ignores the fact that the International Criminal Court is a failed body accused of corruption and corrupt practices and judicial and procedural incompetence and repeatedly caught up in sexual misconduct scandals. ICC judges, some of whom have never been lawyers, are “elected” not because of legal expertise but through corrupt FIFA-esque “vote-trading”. Prominent international law experts, friends of the Court, have said the following of key ICC decisions: “spectacular failures”, a “fiasco”, “obvious shortcomings”, “deeply misguided . . . very dangerous and unwise”, “confusing”, a “mess” and the “worst possible solution”, with ICC prosecutors said to be “poorly prepared”, “angry, threatening” and “autocratic” with a “coercive or dictatorial management style” and a “recurring pattern of evidentiary problems”. In April 2019, the first four presidents of the Assembly of States Parties, the body which oversees the ICC, publicly announced that “the International Criminal Court Needs Fixing”. Other commentators have clearly stated that “The ICC urgently needs reforms”. Other friends of the ICC have been equally candid.

Amnesty International has noted the ICC’s “questionable credibility”, subsequently warning that “the court’s legitimacy risks being eroded by an increasingly selective approach to justice.” In 2023, Human Rights noted deepening “perceptions of politicization in the court’s work” and warned that “The ICC’s legitimacy . . .  is at risk”. Many ICC member states have also lost confidence in the institution and have simply stopped paying their fees to the Court, which is more than $74 million in arrears. One European state party has announced it is leaving the Court and several have stated they will not enforce ICC arrest warrants.

In short, the GNU seeks to place the fate of the Libyan people in the hands of a clearly malfunctioning and fatally-corrupted body, which even its supporters say is at “risk of collapse” and ask “Is the International Criminal Court broken?”

Fifthly, the GNU decision also seeks to whitewash one of the most questionable “judicial” interventions (and there have been several) ever made by this failed Court. On 26 February 2011, following the outbreak of civil unrest and armed insurrection against the government of Muammar Gaddafi, the UN Security Council referred the situation in Libya since 15 February 2011 to the ICC.

On 3 March 2011, the ICC Prosecutor opened an investigation which quickly resulted in the indictment of Muammar Gaddafi, his son, Saif al-Islam Gaddafi, and Libya’s intelligence chief Abdullah Senussi, for alleged crimes against humanity. Similar referrals of situations to the ICC had previously taken years to proceed. 

The Financial Times, for example, has cited a bulletin about ICC involvement in Uganda: “The Prosecutor opened an investigation in July 2004. On 1 December 2023, the Prosecutor announced that the investigation phase in the Uganda situation has been concluded.”

By way of comparison the Libyan referral, investigation and indictments took a matter of weeks. Many observers believe the ICC was weaponised to provide a flimsy legal rationale for NATO’s subsequent military intervention during which the Libyan head-of-state was killed in October 2011, tens of thousands of civilians were killed and millions more displaced.

The ICC has already failed in Libya. None of the three people indicted in 2011 ever appeared before the Court and far from deterring conflict, Libya subsequently spiralled into a second civil war. Professor Yvonne McDermott has referred to the ICC’s “tattered reputation” and that additionally it also failed “to encourage fair trials” in Libya.

The two rival administrations have vied with each other for control of Libya since 2011 with the second Libyan civil war being fought from 2014-2020. Although the 2011 Security Council’s referral of Libya situation to the ICC did not include an end date, the time elapsed since that referral raises the question of whether the ICC is entitled to exercise jurisdiction over any events recently committed in Libya. Nonetheless, another Libyan, subsequently killed in Benghazi, was indicted and several other indictments for Libyans, including a general, were unsealed from 2024 onwards.

To outside observers it is puzzling that when even friends of the ICC admit the Court is politicised, broken and dysfunctional the Tripoli regime seeks to embrace it. The reality of the GNU’s decision regarding the ICC is that Tripoli has in all likelihood struck a backroom deal with the corrupt ICC to accept the Court’s jurisdiction in return for the Court being used to destabilise the Government of National Stability by way of politicised indictments of the GNU’s political rivals. Similar deals struck by the ICC have artificially prolonged war and suffering in several African countries.

Nothing good will ever come out of Libyan engagement with the International Criminal Court. Any attempt to transfer any powers to the ICC regarding the Libyan people and situation or to in any way seek to legitimise this court is a dangerous one and must be resisted at every turn.

Dr David Hoile is the director of the Africa Research Centre and the author of Justice Denied: The Reality of the International Criminal Court.